2018 Ohio Municipal League Seminar for Newly Elected Council Members. Council Powers and Procedures

Transcription

1 2018 Ohio Municipal League Seminar for Newly Elected Council Members Council Powers and Procedures Stephen J. Smith, Scott D. Phillips, Alexander L. Ewing, Yazan S. Ashrawi, Thaddeus M. Boggs and E. Rod Davisson THIS SUMMARY IS PROVIDED AS A BEST PRACTICES GUIDE AND IS DESIGNED TO ASSIST MUNICIPAL OFFICIALS WITH IDENTIFYING AND UNDERSTANDING COUNCIL POWERS AND PROCEDURES. MUNICIPAL OFFICIALS ARE ENCOURAGED TO CONSULT WITH THEIR LAW DIRECTOR ON SPECIFIC ISSUES AS THEY ARISE. I. What Type of Municipality? a. City vs. Village it s a population thing (Ohio Constitution, Article XVIII, Section 1 and R.C ) b. Charter vs. Statutory (Ohio Constitution, Article XVIII, Section 7) i. Any municipal corporation may adopt a charter. ii. A charter establishes the framework for the municipal corporation, is adopted by the electors of the municipal corporation, and can only be amended by the electors. Council may recommend and propose charter amendments, but cannot make such amendments on their own. iii. If there is a charter in place, the local government s exercise of procedural or substantive power of local self-government prevails over conflicting statutes. If there is no charter, state law prevails in terms of how to pass an ordinance, and ordinances prevail over matters involving substantive powers of local self-government. II. Qualifications (R.C ) a. Shall be electors of the municipal corporation. If you move, shall forthwith forfeit office.

2 III. IV. b. Shall not hold any other public office or employment, except that of notary public or member of the state militia, or state or county central committeeman of a political party, or state or county executive committeeman of a political party, or state or county officer of a political party. c. Shall not be interested in the profits or emoluments of any contract, job, work, or service for the municipal corporation. Any contract in which any such member is or becomes interested may be declared void by the legislative authority. Council Composition (City v. Village) a. City: Generally, 7 Members (3 at large, 4 wards) i. Can have anywhere from 5 to 17 Members (R.C ) b. Village: 6 Members (all at large) i. Can be reduced to 5 Members (Must be approved by voters. Can be initiated by Council or the general public.) (R.C (B) (D)). President Pro-Temp (City v. Village) V. Mayor a. City: Elect President Pro-Temp within 10 days of commencement of term. b. Village: Elect President Pro-Temp at the first meeting in January each year. a. General Duties: i. Mayor shall perform all the duties prescribed by the bylaws and ordinances of the municipal corporation. He shall see that all ordinances, bylaws, and resolutions of the legislative authority are faithfully obeyed and enforced. (R.C ) b. City v. Village i. City: Mayor shall be the chief conservator of peace within the city. He may appoint and remove the director of public service, the director of public safety, and the heads of the subdepartments of public service and public safety, and shall have such other powers and perform such other duties as are conferred and required by law. (R.C ) 1. Mayor shall attend the meetings of the legislative authority of the city when specifically requested by such legislative authority, and answer at such time questions put to any of them by any member of such legislative authority, relative to the affairs of the city under their respective management and control. (R.C ) 2. Veto See below.

3 ii. Village: Mayor shall be the chief conservator of the peace therein and shall have the powers and duties provided by law. He shall be the president of the legislative authority and shall preside at all regular and special meetings thereof, but shall have no vote except in case of a tie. (R.C ) VI. What Authority Does Council Have? a. Basically: 1. Pass laws 2. Control checkbook 3. Control property 4. Set number, duties (to some extent) and compensation of employees b. Council is the legislative branch of municipal government. Its fundamental role is to make the laws and regulations for people to live by. Also establishes the duties of all officers and employees by ordinance or resolution of the legislative authority. (R.C ) i. For a City, [t]he powers of the legislative authority shall be legislative only, it shall perform no administrative duties, and it shall neither appoint nor confirm any officer or employee in the city government except those of its own body. (R.C ) ii. For a Village, the legislative authority determines the number of employees and may remove employees. (R.C ) iii. The Mayor is responsible for administration of the government, including the day-to-day operations and implementation of Council s legislative directives. iv. In some rare circumstances, Council may have the authority to act in a quasijudicial administrative capacity if that power is granted by charter. c. Municipalities have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. (Article XVIII, Section 3). i. All powers of local self-government refers to matters of purely local concern. If a local government regulation has an extraterritorial impact, courts balance the interests of the municipal corporation with the interests of the state. If the state s interests are paramount, the local regulation will fail. ii. Not in conflict with general laws General laws are statewide legislative enactments with uniform application throughout the state. A conflict exists if a municipal corporation permits or licenses that which the state prohibits or the state permits or licenses that which the municipality prohibits.

4 d. General Statutory Authority VII. i. A municipality is a body politic and corporate, which shall have perpetual succession, may use a common seal, sue and be sued, and acquire property by purchase, gift, devise, appropriation, lease, or lease with the privilege of purchase, for any authorized municipal purpose, and may hold, manage, and control such property and make any rules and regulations, by ordinance or resolution, required to fully carry out the provisions of any conveyance, deed, or will, in relation to any gift or bequest, or the provisions of any lease by which property may be acquired. (R.C ) Legislative vs. Administrative a. Legislative i. Legislative hearings involve the formulation of law or policy. A legislative matter has ramifications beyond the immediate parties; it affects the public as a whole. ii. Legislative matters are subject to a formal public hearing. (Preceded by formal public notice) iii. The statements by the public may include generalized statements as to the subjective opinions of the people and desirability of the use. Not required to have sworn testimony and cross-examination of the witnesses. b. Administrative i. In administrative matters, public participation is not required. Instead, administrative matters are subject to an adjudication hearing which is open to the public. ii. Administrative hearings involve the determination of the rights of a specific person. Decisions at an administrative hearing are based upon evidence. iii. The evidence must be specific, substantial, reliable, and probative. In an administrative hearing, testimony must be supported by facts and evidence.

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6 VIII. What Procedures Should be Followed? a. Legislation: i. Many things must be done by ordinance or resolution. 1. Both are considered legislation. a. A resolution is considered to be Council s position on a particular issue (e.g. demolition of unsafe structures). b. An ordinance governs the actions and/or sets forth responsibilities of residents, business, and/or municipal departments (e.g. zoning code, fire code, building code).

7 2. Both are structured similarly with a title and a number. (R.C ) ii. Each proposed ordinance or resolution shall be in written or printed form, and shall contain not more than one subject which shall be clearly stated in the title. General appropriation ordinances may contain the various subjects and accounts for which moneys are appropriated. (R.C ) b. Procedure and Voting (R.C and ) i. Each ordinance must be read on three days (unless at least 3/4 vote of all members dispenses with the rule). (R.C ) ii. Each should be read by title only, unless majority vote of members requests full reading. iii. The vote on passage must be by yea or nay and entered upon the journal. The affirmative vote of a majority of the members of the legislative authority is necessary to adopt any motion, ordinance, or resolution. (R.C ) c. Effective date 1. Technically only the vote on the third reading counts. i. All ordinances or resolutions shall be in effect after thirty (30) days from the date of their passage (unless emergency or current expenses). (R.C and ) d. Mayor s veto in cities (R.C ) i. For cities, every ordinance or resolution must be presented to mayor for approval ii. If he or she approves it, he signs it iii. If the mayor does not approve, they must return it with objections to council within 10 days or at the next regular meting 1. If no objection is made, it s presumed to be approved. iv. For any ordinance appropriating money, the mayor may disapprove of some or all v. The legislative authority can reconsider the ordinance objected to by the mayor, and if it s approved by 2/3 they can override the veto. e. Referendum petition (R.C ) i. Any ordinance or measure passed by legislative authority is subject to referendum. ii. Regardless of publication, no ordinance can go into effect until 30 days after filing with the mayor of a city or passed by the legislative authority of a village iii. If 10 percent of the electors file a petition with the city auditor/village clerk within 30 days, the auditor/clerk will, after 10 days, send a certified copy of

8 IX. the petition and ordinance to the board of elections; review of signatures and returned within 10 days. iv. If valid, then the ordinance or measure is submitted for vote at the next general election. f. Can Council Speed Up Effectiveness? Yes - Pass as an emergency. i. Emergency ordinances or measures necessary for the immediate preservation of the public peace, health, or safety shall go into immediate effect. (R.C ) 1. Must receive 2/3 vote 2. The reasons for the necessity must be in one section of the ordinance or measure ii. Important: this does not change the 3/4 vote required to waive the three readings rule. 1. The ordinance isn t passed until it has been read three times or that requirement is waived. 2. But it can be changed so it s effective immediately upon passage. In effect, it s veto-proof. iii. Ordinances for appropriations for current expenses are similarly exempt. g. Ordinances proposed by initiative petition (R.C ) i. Must have 10% of the electors who voted for governor at most recent election ii. File with auditor or clerk, who will send a certified copy of the petition and proposed ordinance/measure to the BOE within 10 days iii. They certify the sufficiency of the signatures and send back within 10 days iv. Board submits the proposal for vote at the next general election 75 days after auditor/clerk certifies the petition v. No veto h. Amending a prior ordinance or resolution (R.C ) Meetings X. Contracts i. Must include the entire text of the resolution or ordinance you re trying to revise in the new version and repeal the prior resolution or ordinance. a. Cannot be required to hold more than one (1) meeting each week. (R.C ) b. Must be open to the public c. The mayor or any three members can call a meeting with at least 12 hours notice. (R.C )

9 XI. a. All contracts requiring the authority of the legislative authority for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate. After the authority to make such contracts has been given and the necessary appropriation made, the legislative authority shall take no further action. (R.C ) b. Generally, they are to be executed in the name of the Village and signed by the mayor and the clerk (R.C ) c. If there is a village administrator, they may be able to make contracts not exceeding $50,000. d. Cannot enter into contracts that does not go into full operation during the term for which all the members of such legislative authority are elected. (R.C ) Removal from Office (Recall) and or other bad things a. Any elective officer of a municipal corporation may be removed from office by the qualified voters of such municipal corporation. (R.C ) b. Cannot recall any elected official until they have served for at least one year of the term during which the officer is sought to be recalled. (R.C (D)) c. Recall procedure: File a petition with the Board of Elections Petition must demand removal and be signed by electors equal in number to at least fifteen per cent of the total votes cast at the most recent regular municipal election Petition shall contain a general statement in not more than two hundred words of the grounds upon which the removal of the person is sought. If the petition is sufficient, the official has five (5) days to resign. If they do not resign, an election is held (next primary or general election). d. The legislative authority may punish or expel any member for disorderly conduct or violation of its rules, and declare his seat vacant for absence without valid excuse, where such absence has continued for two months. No expulsion shall take place without the concurrence of two thirds of all the members elected, and until the delinquent member has been notified of the charge against him and has had an opportunity to be heard. (R.C ) XII. Annexation and Detachment (R.C. 709) a. Territory may be annexed to, merged with, or detached from, municipal corporations, in the manner provided under Ohio law.

10 b. Annexations must be approved or rejected by the legislative authority. Failure to act in a timely manner (120 days) results in a rejection. (R.C ) XIII. Zoning a. City Council controls land use and zoning. b. For rezoning properties, Council is required hold a public hearing and shall give at least thirty days notice. c. If the ordinance, measure, or regulation intends to re-zone or re-district ten or less parcels of land, as listed on the tax duplicate, written notice of the hearing shall be mailed by the clerk of the legislative authority, by first class mail, at least twenty days before the date of the public hearing to the owners of property within and contiguous to and directly across the street from such parcel or parcels, to the addresses of such owners appearing on the county auditor's current tax list or the treasurer's mailing list and to such other list or lists that may be specified by the legislative authority. (R.C ) d. Any challenge to a zoning action must be brought within two (2) years after the adoption of the legislation (R.C ) e. The municipal corporation or any or the owner of any contiguous or neighboring property who would be especially damaged by such violation may sue for an injunction to stop a zoning violation. (R.C ) f. Non-conforming uses may continue if it was lawful at the time the legislation was passed. The non-conforming use will be terminated if it is voluntarily discontinued for two (2) years or more. Council is permitted the reduce the time-period (as long as not less than six (6) months) by Ordinance. (R.C )

11 Contact information: Stephen J. Smith Attorney at Law One Columbus, Suite West Broad Street Columbus, OH Direct Main Mobile Fax frostbrowntodd.com Scott D. Phillips West Chester Member-in-Charge 9277 Centre Pointe Drive Suite 300 West Chester, OH Direct Main Mobile Fax frostbrowntodd.com Yazan S. Ashrawi Attorney at Law One Columbus, Suite West Broad Street Columbus, OH Direct Main Mobile Fax frostbrowntodd.com Thaddeus M. Boggs Attorney at Law One Columbus, Suite West Broad Street Columbus, OH Direct Main Mobile Fax frostbrowntodd.com

12 Alexander L. Ewing Attorney at Law 9277 Centre Pointe Drive Suite 300 West Chester, OH Direct Main Mobile Fax frostbrowntodd.com E. Rod Davisson, Esq. (LEED-AP) Village Administrator Village of Obetz, Ohio 4175 Alum Creek Drive Obetz, Ohio p EN00349.Public v1